SUPPLEMENTAL FINDINGS OF FACT,
CONCLUSIONS OF LAW
AND ORDER DISMISSING COMPLAINT

This is a continuation of the proceedings in this matter that began on November 15,
2002, when
Complainant Debra Pernsteiner filed a complaint with the Wisconsin Employment Relations
Commission
(Commission), alleging that the Respondents City of Medford (City) and IBEW Local 953
(Union) had
committed prohibited practices in violation of Secs. 111.70(3)(a)5, Stats., and
111.70(3)(b)1, Stats.,
respectively. By decision issued September 24, 2003, Examiner David E. Shaw
dismissed all of Ms.
Pernsteiner's allegations as untimely. On January 5, 2004, the Commission issued an Order
on Review
of Examiner's Decision, affirming the Examiner's dismissal of certain allegations,
overturning the Examiner's
dismissal of certain other allegations, and ordering a hearing.

Dec. No. 30537-C

Page 2

Dec. No. 30537-C

On May 20, 2004, the Commission appointed Commission Chair Judith Neumann to
conduct a
hearing on behalf of the Commission on the remaining allegations in this matter. In
pre-hearing discussions
with the Chair on May 20, 2004, the parties agreed to bifurcate the hearing and to proceed
first on the
issues regarding the Union. They further agreed that Ms.Pernsteiner would have no viable claim against
the City if she did not prevail on the merits of her claims against the Union. They also
agreed on the
following statement of the issues pertaining to Ms. Pernsteiner's claims against the Union:

1. Whether the Union had a duty to fairly
represent Ms. Pernsteiner regarding her
rights under the Memorandum of Agreement (MOA) by monitoring the City's
compliance with the consolidation and restructuring of Ms. Pernsteiner's position
as provided in the MOA;

a. If so, whether the Union breached that duty;

b. if so, whether Ms. Pernsteiner knew or should have
known of the Union's
breach prior to November 15, 2001.

2. Whether the Union breached its duty of fair representation
regarding its handling
of the April 2002 grievance involving Ms. Pernsteiner.

A hearing on the above-described claims against the Union took place on May 25
and 26, 2004
in Medford, Wisconsin before Chair Neumann. The Union and Ms. Pernsteiner submitted
briefs and reply
briefs, the last of which was received on July 26, 2004.

Having reviewed the record and being fully advised in the premises, the Commission
makes and
issues the following:

SUPPLEMENTAL FINDINGS OF FACT
1/

30. At unspecified times during the approximately 15 years that the Union
represented a
combined bargaining unit of Utility linemen and clerical workers, unspecified male members
of the
bargaining unit showed hostility to female members of the bargaining unit. However,
non-employee Union
officials themselves did not exhibit such hostility. The

Page 3

Dec. No. 30537-C

Union officials involved in deciding whether and how far to pursue the April 2002
reorganization grievance
were not aware of hostility between the male and female members of the previously existing
Utility
bargaining unit. 2/

1/ In Decision No. 30537-B, the
Commission adopted Examiner Shaw's Findings of Fact 1 through 27, set
aside his Findings of Fact 28 through 30, and issued its own Findings of Fact 28 and 29.
Those findings
are incorporated herein by reference and will be included in the summary of the facts set
forth in the
Memorandum that follows our Order. Because we are supplementing our earlier findings,
we will begin
with Finding of Fact 30 in this decision.

2/ Cynthia Pernsteiner testified that Union official David Loechler
was present at a meeting at the Medford
Café, where another former Utility clerical employee, Catherine Jackson, was also
present and where the
women informed Loechler about the hostility they were experiencing from the linemen.
However, it is
undisputed that Jackson had left the City's employ in 1997 or earlier and that Loechler did
not begin
working with the Local until 1998. In addition, Loechler denied ever meeting Catherine
Jackson at all, at
the Medford Café or elsewhere. We credit the Union's account on this point.
Cynthia Pernsteiner's
recollection of events throughout her testimony was vague and often inaccurate, probably
owing to the
passage of time and the amount of litigation rather than to any deliberate attempt to mislead.
Nonetheless,
for example, she testified emphatically on direct examination that she had never been
consulted by the
Union during the investigation of the April 5, 2002 reorganization grievance, when the
documentary record
as well as other witness' testimony (and her own testimony on cross examination) clearly
demonstrate that
she was consulted extensively in connection with that grievance. As another example,
Pernsteiner
recollected that Connie Howard was present at the April 29, 2002 meeting with the
City regarding the
grievance, but in fact Howard was not present at that meeting. Accordingly, Loechler's
denial that he was
present at a meeting where the female unit members complained about hostility from the
linemen is more
credible than Persteiner's testimony to the contrary, and we have found
accordingly.

31. Beginning in about 1990, in response to recommendations by outside entities,
the City
implemented certain successive reorganizations of its financial and clerical work that resulted
in the loss of
Utility bargaining unit clerical work and positions. The Union vigorously defended the
clerical portion of
its bargaining unit against these actions by the City, ultimately losing both an arbitration (in
1996) and a
prohibited practice complaint (in 1997). In negotiations for the 1998-99 collective bargaining
agreement,
the Union, with the support of the full membership, refused to agree to the City's proposal
that would have
provided a lower percentage increase for the clerical portion of the unit than for the linemen,
a decision that
resulted in the parties proceeding to interest arbitration, where the City's final offer was
selected.

32. The reorganization that took place in or about November 2000 was initiated by
the City.
During negotiation over the impact of that reorganization upon the City's clerical workers,
resulting in the
Memorandum of Agreement (MOA) that was signed in or about

Page 4

Dec. No. 30537-C

November 2000, the Union was not privy to or part of the City's decision-making
process in determining
that clerical functions would be reorganized, nor did the Union have any specific
understanding or
commitment from the City as to how the clerical job duties would be redistributed.

33. When the City and the Union entered into collective bargaining agreements
covering two
separate units as a result of the MOA in or about November 2000, the City insisted on, and
the Union
agreed to inclusion of language in both Management Rights clauses that had been interpreted
in the 1996
arbitration award, Medford Electric Utility, Case No. 52591 (Buffet, 12/96), as giving the
City a
prerogative to transfer clerical bargaining unit work outside of the bargaining unit without
violating the
contract.

34. At or about the time the reorganization took effect, the Union asked Cynthia
Pernsteiner,
a former Utility clerical employee who was transferred to the new City clerical unit, to keep
track of the
duties she had previously performed for comparative purposes with the duties she would be
performing
in her new position. However, the Union did not affirmatively investigate the status of the
reorganized
clerical duties until Cynthia Pernsteiner's deposition testimony on March 20, 2002, nor did
Cynthia
Pernsteiner or any other bargaining unit member at any time complain to the Union or ask it
to investigate
this issue.

35. On or about January 1, 2001, the City hired a new clerical employee and
member of the
newly created City-wide clerical bargaining unit, Angela Dassow, to handle
receptionist/clerical duties.
Utility Manager Michael Frey was not involved in interviewing or hiring Dassow. Dassow's
duties included
working for all of the various City departments, including the Electric Utility. She was
terminated at the
conclusion of her six-month probationary period without a reason being offered by the City.
She was not
replaced and subsequently the City has employed a series of temporary non-bargaining unit
clerical
workers to perform some of the duties that Dassow had performed.

36. On or about March 21, 2002, then Union attorney Marilyn Townsend as well
as Union
official David Loechler, both of whom had been present at the March 20 deposition of
Cynthia Pernsteiner,
discussed with Union Business Manager and Financial Secretary John Marincel the possibility
of resolving
Debra Pernsteiner's ERD charges against the Union by the Union agreeing to file and pursue
a grievance
alleging that the City had failed to implement the November 2000 MOA in good faith.
During this
conversation, Marincel expressed reservations about filing such a grievance without
investigating the facts
as well as the effects of the 1996 arbitration award, which the Union interpreted as giving
the City a general
prerogative to reassign and transfer clerical bargaining unit work.

Page 5

Dec. No. 30537-C

37. With a cover letter dated March 21, 2002, Union official Loechler conveyed to
Cynthia
Pernsteiner copies of the job descriptions for the jobs she and Debra Pernsteiner had held at
the Utility
prior to the January 1, 2001 reorganization. The letter stated, interalia, "In an effort to investigate this
issue, Please go over these job duties along with any additional duties you or Rita may have
or any
delegation of duties from the enclosed job descriptions."

38. By letter dated March 27, 2002, the Union requested information from the
City relating
to the reorganization of clerical duties. The letter stated, interalia:

[I]t appears that the utility clerical jobs have simply been moved
intact from one location
to another. If, as Cindy Pernsteiner has testified, she is continuing to perform the same job
functions she performed as a computer operator before the 'reorganization' under the
same supervision, she should be classified and paid accordingly.

I hereby request the following information from the City needed by the Union to
evaluate
whether to pursue a grievance and/or prohibited practice charges:

1. Current job duties and
responsibilities being performed for the City/Utility
by Cindy Pernsteiner; and

2. Current job duties and responsibilities being performed
for the City/Utility
by Rita Tischendorf.

39. With a cover letter dated March 28, 2002, the City conveyed to the Union
"the job
descriptions for Cindy Pernsteiner and Rita Tischendorf as requested." The enclosed job
description for
Rita Tischendorf, entitled "Receptionist/Clerical," was virtually if not entirely identical to the
job description
offered to Debra Pernsteiner and declined by her during the fall 2000 preparations for the
clerical
reorganization that took place on January 1, 2001. Rita Tischendorf had worked in a clerical
capacity for
the City, but not the Utility, prior to the reorganization. After the reorganization,
Tischendorf became a
member of the new City-wide clerical bargaining unit represented by the Union.

40. On or about April 1, 2002, Union official Loechler engaged in a telephone
conversation
with Rita Tischendorf in which Loechler informed Tischendorf that the Union was
investigating whether the
clericals' jobs had changed. Tischendorf stated in that conversation that her job had
changed, in that she
was now doing her former job duties plus duties that Debra Pernsteiner had previously
performed.

On April 5, 2002, the Union filed a reorganization grievance.

Page 6

Dec. No. 30537-C

41. On April 11, 2002, the Union telephoned the City to set up a meeting to
discuss the April
5, 2002 reorganization grievance. By letter dated April 11, 2002, the Union advised the City
that it would
be available to meet on several dates between then and the end of April, 2002.

42. On April 29, 2002, prior to meeting with City officials later that day regarding
the April 5,
2002 grievance, the Union met with Cynthia Pernsteiner to obtain her responses to an
eight-page
questionnaire that the Union had prepared comparing her job duties before and after the
reorganization.
Her responses indicated that she was performing essentially the same work that she had
always performed,
i.e., bookkeeping and accounting tasks mostly for the Utility but also for Water, Sewer,
Refuse/recycling,
and fire protection ­ accounts she had always managed even before the reorganization.
According to
Cynthia, the only additional duty she performed after moving to City Hall was to assist in the
preparation
and collection of property taxes perhaps once a week in the absence of Tischendorf or Jeffrey
Albers (the
Treasurer). She contended that, even though her new job description stated that she reported
to Office
Manager Kevin Doberstein, she in practice had always reported to the Office Manager for
vacation
purposes and that she continued even after the reorganization to clear her vacation schedule
through Utility
Manager Michael Frey and otherwise report to him "on all aspects of her job."

43. 0n April 29, 2002, Union officials and Cynthia Pernsteiner met with City
officials to discuss
the Union's April 5, 2002 reorganization grievance. During the course of this meeting, the
City sought
clarification about whether the Union was representing Debra Pernsteiner as well as Cynthia
Pernsteiner
for purposes of the grievance. The Union responded that Cynthia Pernsteiner was the only
grievant,
because Debra was no longer a member of the bargaining unit, but that Debra Pernsteiner
was named in
the grievance because she would be a beneficiary of any remedy the Union obtained. The
Union took this
position in part to ensure that the City would deal substantively with the grievance, because
the Union
believed that, if Debra Pernsteiner were named as a grievant, the City would refuse to
process the
grievance. The meeting ended with no resolution of the grievance.

44. Also on April 29, 2002, the State ERD issued its Order dismissing
Ms. Pernsteiner's
complaint against the Union based upon the settlement agreement.

45. On or about May 9, 2002, the City submitted its responses to the Union's
questionnaire
regarding changes to Cynthia Pernsteiner's job duties. The City's answers were somewhat
but not
significantly different from the information Cynthia Pernsteiner had provided to the same
questions.

46. During the course of its investigation, the Union concluded that, although
Cynthia
Pernsteiner was now handling several of the job duties that Debra Pernsteiner had previously
performed
and some additional work, and while the City had plans to implement a

Page 7

Dec. No. 30537-C

new accounting software program that was expected to alter Cynthia Pernsteiner's
duties, her job had not
changed significantly as a result of the reorganization. The Union concluded, however, that
the
reorganization had effectuated significant changes in the distribution of duties formerly
performed by Debra
Pernsteiner. Those duties were distributed among Tischendorf, Office Manager Kevin
Doberstein, Cynthia
Pernsteiner, and the temporary clerical employees.

47. The Union did not contact Debra Pernsteiner during the course of its
investigation or
otherwise seek information from her.

48. By letters dated July 29, 2002, the Union informed the City and Debra
Pernsteiner,
respectively, that the Union "after due consideration" had determined not to pursue it's April
5, 2002
reorganization grievance. The Union offered to discuss its reasons with Ms. Pernsteiner and
her attorney.
This was the Union's first contact with Debra Pernsteiner regarding the grievance subsequent
to April 18,
2002.

49. The Union's reasons for withdrawing the April 5, 2002 grievance were: (1)
that it had
concluded that a reorganization of clerical duties had occurred to a sufficient degree to
undermine the
factual basis of the grievance; and (2) that its understanding of the City's management rights,
based upon
the 1996 arbitration award and the 1997 prohibited practice decision (WERC Dec. No.
28440-D), was
that the City had the prerogative under the collective bargaining agreement to assign and
transfer clerical
duties with or without a reorganization, thus giving the April 5 grievance little chance of
success.

50. The Union's decision to withdraw the April 2002 reorganization grievance was
made in
good faith and was not arbitrary or discriminatory.

Based on the above and foregoing Findings of Fact, the Commission makes and issues
the
following

CONCLUSIONS OF LAW

1. Respondent IBEW Local 953 had no statutory or contractual obligation
enforceable under
the Municipal Employment Relations Act to monitor the Respondent City of Medford's
actions for
compliance with the terms of the Memorandum of Understanding (MOA).

2. Respondent IBEW Local 953 did not violate its duty of fair representation
towards
Complainant Debra Pernsteiner by not taking the April 2002 reorganization grievance to
arbitration and
thus did not thereby commit a prohibited practice within the meaning of
Sec. 111.70(3)(b)1, Stats.

Page 8

Dec. No. 30537-C

3. Because Complainant Pernsteiner failed to exhaust the contractual grievance
procedure
and that failure was not attributable to a breach of the duty of fair representation by
Respondent IBEW
Local 953, the Commission will not assert jurisdiction over Complainant Pernsteiner's claims
against the
Respondent City of Medford for violations of Sec. 111.70(3)(a)5,
Stats.

Based on the above and foregoing Findings of Fact and Conclusions of Law, the
Commission
makes and issues the following

ORDER

The complaint is dismissed in its entirety.

Given under our hands and seal at the City of Madison, Wisconsin, this 19th day of
August, 2004.

WISCONSIN EMPLOYMENT RELATIONS COMMISSION

Judith Neumann, Chair

Paul Gordon,
Commissioner

Susan J. M.
Bauman, Commissioner

Page 9

Dec. No. 30537-C

City of Medford

MEMORANDUM ACCOMPANYING
ORDER

Summary of Facts

Complainant Debra Pernsteiner was employed as a clerical worker at the Medford
Electric Utility
for about 15 years prior to her December 7, 2000 termination. During her employment she
was a member
of a collective bargaining unit represented by the Union comprising all of the
non-supervisory employees
at the Medford Electric Utility, including clerical workers and skilled trade and maintenance
workers. At
all relevant times prior to Ms. Pernsteiner's termination, there was one other clerical
worker at the Utility,
Cynthia Pernsteiner, who is related only distantly to the Complainant's husband. At all
relevant times prior
to Ms. Pernsteiner's termination, the City also employed certain clerical workers at City
Hall, who were
not members of a bargaining unit.

Beginning in about 1990, the City and the Union experienced friction over the City's
desire to
reorganize clerical and financial work at the Utility and City Hall and over the City's
transferring bargaining
unit clerical work from the Utility employees to unrepresented City employees. The Union
vigorously
defended its clerical bargaining unit work, but the City prevailed in a 1996 arbitration award
and a 1997
prohibited practice proceeding, which the Union interpreted as giving the City an unrestricted
prerogative
to transfer clerical work from the bargaining unit to other City employees, with or without a
reorganization.
While the clerical workers and the linemen were in the same Utility bargaining unit, the
women experienced
some hostility from the men, although the record does not disclose the nature, scope, or
timing of that
hostility. During the 1998-99 negotiations, the bargaining unit membership at large resisted
a City attempt
to give clerical workers a lower wage increase than the linemen. The Union officials
involved in the instant
case were unaware of any history of hostility and did not themselves harbor any hostility
toward the clerical
members of the unit.

In 2000, the City again initiated a reorganization designed to consolidate the clerical
work of the
Utility and City Hall and to eliminate the clerical positions at the Utility. The City and the
Union negotiated
over the effects of the City's decision to reorganize, resulting in a Memorandum of
Agreement (MOA)
executed in late November 2000. The MOA provided for Debra Pernsteiner to be laid off
with severance
pay and other benefits and for the City to recognize the Union as the collective bargaining
representative
of a separate bargaining unit of City clerical employees. Ms. Pernsteiner was terminated
effective
December 7, 2000, pursuant to the MOA and paid in accordance with its terms. 3/

3/ Debra Pernsteiner had been offered a new position at City Hall
at a lower wage rate than she had
been receiving at the Utility and she declined that position.

Page 10

Dec. No. 30537-C

The MOA was premised upon the City's assertion that it intended to reorganize and
combine Utility
and other City clerical and financial functions. By letter dated November 9, 2000, addressed
to the City,
the Union expressed concern that "[t]he new clerical agreement was also premised upon
reorganization.
If nothing changes but clerical workers' wages, the City invites the conclusion that the
purported
reorganization was a smokescreen to conceal wage reductions for improper reasons." In
another letter to
the City dated November 21, 2000, the Union stated that it "will be monitoring the situation
and must
reserve the right to take appropriate action to protect the rights of those employees it
represents." In a
November 15, 2000 letter to Debra Pernsteiner, the Union stated:

. . . if the City reneges on its economic commitments to
Pernsteiner, the Union will pursue
a grievance on her behalf. However, if the City completes the clerical reorganization as
anticipated, and abides by the terms of the new contract, including it's [sic] economic
obligations to Pernsteiner, Local 953 will not pursue a grievance on her behalf. (footnote
omitted)

Sometime towards the end of December 2000 or the beginning of January 2001, the
Union
mentioned to Cynthia Pernsteiner that she should keep a record of her job duties and whether
they changed
as a result of her move to City Hall. However, the Union had no specific understanding or
commitment
from the City regarding how the former Utility clerical duties would be distributed among
the workers at
City Hall.

Between the implementation of the reorganization on or about January 1, 2001 and
March 20,
2002, no one, including Cynthia Pernsteiner, informed the Union that the reorganization of
clerical duties
may not have occurred or asked the Union to investigate. On March 20, 2002, during a
deposition in
connection with Debra Pernsteiner's ERD complaint against the Union, Cynthia Pernsteiner
testified that
her duties had not changed after her transfer to City Hall. Beginning the next day, March
21, 2002, in
order to determine the viability of a grievance challenging the bona fides of the
reorganization, the Union
conducted an investigation of the job duties currently being performed by personnel in City
Hall as
compared with the job duties that Debra and Cynthia Pernsteiner had performed prior to the
2000
reorganization. The investigation took the form of lengthy questionnaires for Cynthia to
complete regarding
her duties and Debra's duties before and after the reorganization, a lengthy request for
information from
the City relating to the clerical job duties, a telephone conversation with Rita Tischendorf,
one of the
members of the City clerical unit, conversations with City officials, a detailed conversation
with Cynthia
Pernsteiner regarding her job duties, and a meeting on April 29, 2002 among City officials,
Union officials,
and Cynthia Pernsteiner.

Page 11

Dec. No. 30537-C

While continuing its investigation, the Union filed a grievance on April 5, 2002,
alleging, inter alia,
"Since the clerical reorganization has not occurred as represented, Cindy Pernsteiner and
Debra
Pernsteiner were constructively discharged and terminated respectively, in violation of the
labor contract.
. . . Remedies requested include . . . back wages, benefits and reinstatement for Debra
Pernsteiner . . . ."
The City responded in substance that the grievance was procedurally defective, lacked merit,
and was also
untimely, "as the consolidation took place many months ago."

By letter dated April 16, 2002, the Union informed Complainant Debra Pernsteiner
that it was in
the process of obtaining information concerning the grievance and had scheduled a meeting
with the City
to discuss the current job duties of the City Hall clerical employees, including Cynthia
Pernsteiner. The
letter concluded, "It remains the Union's intentions (sic) to proceed to the next step in the
grievance
procedure."

On April 18, 2002, the Union moved the grievance to the next step in the grievance
procedure, but
modified the text of the grievance to state that the failure to implement the reorganization
was "a violation
of the Management Rights Clause in the current labor agreement . . . ." As in the initial
grievance
document, the April 18, 2002 document requested, inter alia, "back wages,
benefits and reinstatement for
Debra Pernsteiner . . . ." On April 29, 2002, the Union and the City met to discuss the
grievance. During
that meeting, the Union stated that the grievant in the matter was Cynthia Pernsteiner but that
Debra
Pernsteiner would be significantly affected by any remedy should the Union prevail.

On May 9, 2002, the City submitted its responses to the Union's questionnaire
regarding changes
to the clerical employees' job duties. At some point thereafter, the Union concluded that the
City had
sufficiently reshuffled the clerical job duties to make the grievance factually weak. The
Union believed that
the City had done little to restructure Cynthia Pernsteiner's job, although she was doing
several of Debra's
former duties and some incidental tax collection work. However, the Union also believed
that Complainant
Debra Pernsteiner's former duties had been divided up among several clerical and financial
employees at
City Hall, which the Union believed would be sufficient to meet the City's vague and
unspecified obligations
under the MOA. The Union's views of the merits of the grievance were also influenced by
its interpretation
of the 1996 and 1997 grievance and prohibited practice decisions, which seemed to the Union
to give the
City virtually unfettered authority to assign and reassign clerical work at will. In this regard,
the Union
considered the fact that the City had insisted upon including in the new clerical bargaining
agreement the
management rights clause language from the former Utility agreement that had been
interpreted to allow the
City to transfer clerical work out of the unit.

Based upon the above considerations, the Union decided not to pursue the April 2002
reorganization grievance to arbitration and communicated that decision to the City and to
Debra
Pernsteiner by letters dated July 29, 2002. This was the Union's first communication

Page 12

Dec. No. 30537-C

with Debra Pernsteiner subsequent to April 18, 2002. Thereafter, Ms. Pernsteiner
attempted to utilize the
grievance procedure and its arbitration provisions regarding the April 5, 2002 grievance, but
the City
refused to proceed to arbitration. The instant complaint ensued.

DISCUSSION

Duty to Monitor

According to the stipulated statement of issues, Ms. Pernsteiner's first claim against
the Union is
that it failed to monitor the City's compliance with an implicit condition of the November
2000 MOA, i.e.,
to reorganize and merge the Utility's and the City's clerical work. Ms. Pernsteiner devotes
little energy to
clarifying the legal or factual basis for this claim, pointing only to the duty as having been
"undertaken by
Attorney Howard's November 15, 2000 letter." (Complainant's Reply Brief at 2).

The Union correctly argues that the duty of fair representation, which is a function of
the Union's
status as the exclusive collective bargaining representative, does not generally include an
affirmative duty
to police an employer's compliance with the terms of the collective bargaining agreement,
nor has Ms.
Pernsteiner offered any legal authority for such a proposition. Rather, the duty of fair
representation in this
context is triggered by an individual's grievance or request for representation. Thus, to
whatever extent
Complainant Pernsteiner's claimed breach of the duty of fair representation rests upon an
alleged violation
of a general affirmative duty, we reject her claim.

However, Ms. Pernsteiner's monitoring claim may rest less upon the Union's general
duty of fair
representation than upon a special undertaking or commitment by the Union to ensure that
the City fulfilled
the conditions which induced Ms. Pernsteiner's termination. Since our jurisdiction
encompasses only
alleged violations of "collective bargaining agreements" reached between unions and
employers, Sec.
111.70(3)(b)4, Stats., Ms. Pernsteiner's claim would not fall within our jurisdiction if
the alleged
commitment or contract is between the Union and Ms. Pernsteiner, rather than between the
Union and the
City. 4/

4/There is some authority
to suggest that, in enacting Sec. 111.70, Stats., the Legislature has foreclosed
such common law causes of action in tort or contract , because "disputes between a union
member and his
or her union which arise out of that union/member relationship, and which relate to union or
work-related
activities, are within the primary jurisdiction of the WERC under ch. 111, Stats. . . .
Chapter 111 is a
comprehensive regulatory enactment which has supplanted many previously existing common
law
remedies." Acharya v. AFSCME, 146 Wis. 2d 693, 699 (Ct. App. 1988) (citations
omitted). If so, claims
involving the union's representation activities would have to fit within one of the statutory
prohibited
practices set forth in Sec. 111.70(3)(b), Stats., in order to be actionable.

Page 13

Dec. No. 30537-C

If, on the other hand, Ms. Pernsteiner is arguing that the Union's promise to monitor
the
reorganization was part and parcel of the collectively-bargained MOA, her claim has some
theoretical
support. The Commission has interpreted the State Employment Labor Relations Act
(SELRA), the State
employee analog to the Municipal Employment Relations Act (MERA), to permit an
individual employee
to bring a prohibited practice complaint against her union for a breach of a collective
bargaining agreement
separate and apart from the duty of fair representation under Sec. 111.70(3)(b)1, Stats.
WSEU, Council
24, WERC Dec. No. 22320-B (WERC, 7/86), aff'd sub nom. Acharya v. WERC,
Case No. 86-CV-4140 (Dane Co. Cir. Ct. 1987), at 9. However, to do so, the Complainant
would have to establish that
the parties to the collective bargaining agreement clearly intended to create such an
enforceable contractual
commitment ­ in this case that the Union would monitor the reorganization. Id. This
is and ought to be a
difficult standard. As the United State Supreme Court noted, in recognizing a similar cause
of action under
Section 301 of the LMRA, 29 U.S.C. Sec. 185(a),

. . . we also think it necessary to emphasize caution, lest the
courts be precipitate in their
efforts to find unions contractually bound to employees by collective bargaining
agreements. The doctrine of fair representation is an important check on the arbitrary
exercise of union power, but it is a purposefully limited check, for a 'wide range of
reasonableness must be allowed a statutory bargaining representatives in serving the unit
it represents.' . . . If an employee claims that a union owes him a more far-reaching duty,
he must be able to point to language in the collective bargaining agreement specifically
indicating an intent to create obligations enforceable against the union by the individual
employees. . . .

Neither the MOA nor the ancillary correspondence comes close to establishing a clear
contractual
requirement that the Union monitor the City's reorganization of clerical duties. The MOA
itself is
completely silent on the subject, a deficit sufficient without more to negate this claim.
Similarly, the Union's
November 15, 2000 letter to Ms. Pernsteiner does not mention monitoring nor reference any
similar
agreement between the Union and the City. The relevant language reads as follows:

. . . if the City reneges on its economic commitments to
Pernsteiner, the Union will pursue
a grievance on her behalf. However, if the City completes the clerical reorganization as
anticipated, and abides by the terms of the new contract, including it's [sic] economic
obligations to Pernsteiner, Local 953 will not pursue a grievance on her behalf.

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Dec. No. 30537-C

Even under the dubious premise that the quoted language was a promise to grieve if
the City failed to
reorganize, the promise would be from the Union to Ms. Pernsteiner, not from the Union to
the City, and
hence would not be a "collective bargaining agreement" actionable under Sec. 111.70(3)(b)4,
Stats. The
only mention of monitoring is in the Union's letter to the City of November 21, 2000, where
the City was
informed of the Union's view that the MOA was premised upon an asserted intent to
reorganize and was
warned that the Union "will be monitoring the situation and must reserve the right to take
appropriate action
to protect the rights of those employees it represents." Such unilateral assertions fall far
short of an
enforceable collectively negotiated agreement requiring the Union to monitor the
reorganization.

Given the foregoing, we conclude that the Union did not have an affirmative duty to
monitor the
City's implementation of the reorganization and thus we dismiss those portions of the
complaint.
Accordingly, we need not determine whether the monitoring claim was timely filed or
whether the Union
breached the alleged duty to monitor.

Duty of Fair Representation Regarding the April 2002
Grievance

It is by now well settled that, where a labor agreement
contains a grievance arbitration procedure,
it is presumed (absent an express provision to the contrary) to be the exclusive method of
settling
contractual disputes. Mahnke v. WERC, 66 Wis. 2d 24 (1975). Where, as here, the union
has control
over the contractual grievance arbitration procedure and elects not to take a grievance to
arbitration, an
employee may not pursue a claimed breach of the agreement under Sec. 111.70(3)(a) 5,
Stats. unless the
union has violated its duty of representation when deciding not to take the grievance to
arbitration. 5/
Mahnke, supra.

5/ No party has argued that the contractual grievance arbitration
provisions are inapplicable to
alleged violations of the MOA.

The duty of fair representation "is a purposefully limited check" on a union's
considerable discretion in handling grievances, Rawson, supra, and to establish a breach of
the
duty a complainant has the burden of establishing that the "union's conduct toward a
member . . . is
arbitrary, discriminatory, or in bad faith." Mahnke, 66 Wis.2d at 531 (quoting Vaca v.
Sipes, 386 U.
S. 171, 190 (1967). "Bad faith" for this purpose "calls for a subjective inquiry and requires
proof that the
union acted (or failed to act) due to an improper motive." Neal v. Newspaper Holdings,
Inc., 349
F.3d 363, 369 (7th Cir. 2003).

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Dec. No. 30537-C

"Arbitrariness" generally focuses on whether the union has made a reasoned decision
about proceeding
with the grievance, Mahnke, 66 Wis.2d at 534, keeping in mind the "'wide range of
reasonableness'"
that the union must be allowed. Mahnke, 66 Wis.2d 524, 531, quoting Humphre v. Moore,
375 U. S.
335, 349 (1964).

Debra Pernsteiner's claim in this case implicates elements of both bad faith and
arbitrary conduct.
6/ As to bad faith, she contends that the Union had a history of hostility to the clerical
members of the
former Utility bargaining unit, and that this hostility induced the Union both to permit the
sham reorganization
underlying the MOA and to ignore the clear evidence that the reorganization had not
occurred. The record
evinces some amorphous hostility between the male linemen and the clerical workers when
they worked
together at the Utility. Debra Pernsteiner's husband testified to conversations with former
Union officials
at unspecified dates in the past in which they told him that "the men [at the Utility] hate the
women." In
addition, Cynthia Pernsteiner testified about an incident at an unspecified date, certainly prior
to the events
giving rise to this case, in which an unspecified male bargaining unit member left an
envelope containing a
pantyliner in the women's bathroom labeled, "New AOC Insurance Plus, Office and Clerical
personel [sic]
only, Free First time users fee, Accidental & Overtime Coverage, Attention Cindy,
Kathy, & Deb."
Cynthia Pernsteiner also recalled a conversation with Union officials (though she
misidentified David
Loechler as one of them) some years ago, in which the clerical workers complained about the
hostility from
the linemen.

6/ Ms. Pernsteiner does not advance arguments suggesting that the
Union was "discriminatory" apart from
its alleged bad faith or invidiousness in agreeing to the MOA and failing to monitor
compliance ­
arguments that are addressed in the text above.

Juxtaposed with the foregoing ill-defined evidence of intra-unit hostility is
considerable undisputed
evidence that the Union has been aggressive in supporting the clerical portion of the former
Utility
bargaining unit, not only in repudiating the City's effort to give the women a lower wage
increase than the
linemen in the 1998-99 negotiations and in vigorously challenging the loss of clerical
bargaining unit work
in the mid-1990's, but also in negotiating the 2000 MOA. The MOA garnered representation
rights for
the newly reorganized City clerical unit, increased the City's proposed wages for the City
Hall clericals,
and provided substantial severance benefits to Complainant Pernsteiner. Most importantly,
nothing in the
record links whatever vague hostility existed between the men and the women at the Utility
in the 1990's
to the Union's conduct regarding the April 2002 grievance, including the decision not to take
the grievance
to arbitration. There is no evidence that the Union decision-makers

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Dec. No. 30537-C

regarding that grievance (Loechler and Marincel) had any knowledge of the purported
intra-unit hostility,
much less that they harbored any such hostility themselves. In short, Ms. Pernsteiner
has not established
invidiousness or bad faith in the Union's handling of the April 2002 grievance.

We also conclude that the Union handled the April 2002 grievance in a non-arbitrary
manner. The
Union filed the grievance promptly upon learning from Cynthia Pernsteiner's deposition that
the City may
have failed to implement an authentic reorganization. Although Complainant Pernsteiner
makes much of
the Union's failure to identify her as a grievant per se in connection with this grievance, on
this record we
see no prejudice to her interests in not being so designated. Whether or not the Union
perceived Debra
Pernsteiner as a "grievant," the Union clearly identified her as a party whose interests would
be affected
by the grievance. Being labeled a "grievant" would not have affected the outcome of the
Union's
investigation or Ms. Pernsteiner's right to invoke the arbitration clause of the contract.

Similarly, the Union's investigation was anything but arbitrary. The Union sought
comprehensive
information about the distribution of the clerical job duties from both the City and the
clerical workers, in
particular from Cynthia Pernsteiner. The Union met with City officials as well as Cynthia to
gather and
reflect upon the information. While the Union's investigation did not include consulting
Debra Pernsteiner,
Cynthia Pernsteiner was well aware of the duties formerly performed by Debra Pernsteiner
and there is no
reason to believe that Debra, who had not worked for the City since the fall of 2000, had
any information
to contribute about the dispersal of those duties. The conclusions the Union drew from the
information were
also reasonable, i.e., that Cynthia's duties had changed somewhat but not significantly, but
that Debra
Pernsteiner's duties had in fact been dispersed among several City employees. 7/ The Union
reasonably
decided that the substantial dispersion of Debra Pernsteiner's duties undermined its ability to
prevail on the
merits of the grievance, which depended upon proof that the reorganization was a sham.
Moreover, while
other interpretations might be available, the Union reasonably viewed the 1996 and 1997
arbitration and
prohibited practice decisions, respectively, as major impediments to challenging any actions
the City took
in the way of transferring or assigning clerical bargaining unit work. Accordingly, the
Union's decision not
to pursue the April 2002 grievance to arbitration was not arbitrary.8/

7/ We emphasize that we need not determine in this case the
precise accuracy of the Union's conclusions
or the precise scope of the City's reorganization. While such findings would be material to
Ms. Pernsteiner's
claim against the City, for purposes of the instant decision we need only determine whether
the Union's
conclusions about the reorganization were arbitrary.

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Dec. No. 30537-C

8/ We note that the court in MAHNKE indicated that, where a
union's decision not to arbitrate is based
upon the costs of arbitration, the union generally should consider not only the likelihood of
success in
arbitration but also the monetary value of the claim and the effect of the breach on the
employee. 66 Wis.2d
at 534. Ms. Pernsteiner has not established that the Respondent Union based its decision
upon the costs of
arbitration, rather than solely upon the merits of the grievance, nor has the Complainant
established that
the Union failed to consider these additional factors when it decided not to proceed to
arbitration.

Debra Pernsteiner also challenges the Union's failure to keep her apprised of the
status of the April
2002 grievance and failure to notify her until July 29, 2002, that it had decided to withdraw
the grievance.
It is well settled that such communication failures do not, in and of themselves, violate a
union's duty of fair
representation. "Since only the union can arbitrate, any breach of duty in not arbitrating
hangs on the
reasons for not arbitrating, not whether it communicated its reasons or decision to the
grievant."
University of Wisconsin-Milwaukee Housing Dept. (Guthrie), Dec. No. 11457-F (WERC,
12/77), at 34.

Accordingly, we conclude that the Ms. Pernsteiner has not established. that the Union
violated its
duty of fair representation under Sec. 111.70(3)(b)1, Stats., by the manner it handled the
April 2002
grievance, and we dismiss those claims. Because we have not found a breach of the duty of
fair
representation and because the contractual grievance arbitration procedure is the exclusive
mechanism for
pursuing alleged violations of the MOA, Ms. Pernsteiner's Sec. 111.70(3)(a)5, Stats.,
claims against the
City for violating the MOA must also be dismissed.